Activist Judges!!!!

[FromWayDowntown]

On the second, don't you find it odd Roberts used something called the "fairly possible" test in order to construe the individual mandate penalty into a tax when no one on the side supporting the law saw it that way and, in fact, went to great lengths to assure the American people it wasn't a tax?

Nothing in law obligates a Court to limit its reasoning to the choices proposed by the parties in litigation. It's actually quite frequently true that a Court will consider those arguments and then come to some quite different conclusion about why a case should be decided a particular way.

In this case, I don't really find the conclusion odd, particularly given that the government did, in fact, advance the tax characterization argument as a basis for upholding the mandate throughout the litigation. Even if it hadn't made that argument, it wouldn't be unprecedented for a judge to have reached that conclusion and used that as a basis to conclude that the law was cons utional.

That the politicians who enacted the law chose not to publicly characterize it as a tax certainly doesn't foreclose the possibility that the judicial system would ultimately conclude that the law did, in fact, cons ute a valid exercise of taxing power.

[FromWayDowntown]

If you agree the Individual Mandate was the linchpin on which the law lived or died, then technically, the law was transformed from a health care law to a tax bill.

The distinction isn't minor.

I'm sure they'll be re-visiting the origin of the legislation since all tax bills must begin in the House. This bill was a complete re-write of the House version that began in the Senate.

Also, as a tax bill, repealing it falls under different rules.

But, I'm just repeating what I've gleaned from Volokh and other sources. Seems to have been a major shift in the fundamental understanding of what the law is intended to be.

I think that's a pretty silly contention. The characterization of the law as a tax bill doesn't change one word of its statutory text and doesn't create any variance from its original intent. It's simply a matter of cons utional characterization; better yet, it's simply a shorthand for stating the basis for the law's validity.

The law reads the same today as it did three days ago and the Court's majority did absolutely nothing to reconstrue the law's text or to modify any of its provisions. Concluding that there is a different cons utional basis for its validity doesn't change the law in any way whatsoever.

I tend to think that if those procedural issues had any real merit in terms of the law's viability, the advocates who argued against the law would have urged the Court to reject the tax argument because the law was not passed in a manner that would permit that characterization. Alternatively, I think it's quite plausible that Chief Justice Roberts would have seized upon that problem. That those positions do not appear to have been advanced strikes me as pretty solid proof that it would not serve to undermine the law itself.

[FromWayDowntown]

Nothing in law obligates a Court to limit its reasoning to the choices proposed by the parties in litigation. It's actually quite frequently true that a Court will consider those arguments and then come to some quite different conclusion about why a case should be decided a particular way.

And in keeping with the theme of the thread, I'd argue that if a judge finds a basis for an outcome that neither side to the litigation urged, it's not activism on his part. His job is to resolve the pending issue correctly. While the arguments of the litigants should guide that effort, the judge shouldn't be bound by those arguments and only those arguments, particularly in dealing with issues of wide public import rather than those that are limited to a dispute between private litigants.

[FromWayDowntown]

http://www.cbsnews.com/8301-3460_162...alth-care-law/

Jan Crawford's bombs report that Roberts turned after initially siding with the conservatives who believed the mandate wholly uncons utional. It's not the substance of the report that makes it a bombs as much as the fact that Crawford appears to have a source within the Court who is intimately familiar with the deliberations. Insight like that is rarely available so soon after a landmark case is decided (if it is ever made known).

[Nbadan]

I'm on record stating that the mandate being upheld will hurt Barry in the elections... said that before the SCOTUS ruled... we'll see...

I don't think so because there is a 50-50 support/nonsupport for the health care law...this law is broken down by political affiliation already so it's likely to be used by the right to outrage voters who already dislike Obama more-so than to convince political novices, ie independents, into voting for Romney,,.who ironically raised taxes to unprecedented levels in Massachusetts with Romney-care

[Wild Cobra]

I don't think so because there is a 50-50 support/nonsupport for the health care law...this law is broken down by political affiliation already so it's likely to be used by the right to outrage voters who already dislike Obama more-so than to convince political novices, ie independents, into voting for Romney,,.who ironically raised taxes to unprecedented levels in Massachusetts with Romney-care

I'm, pretty sure ElNono is right, that it will hurt Obama during the elections.

[Nbadan]

Larry Sabato, one of the top if not the top political analyst in the nation, says that views on health care are "already baked into the cake" regardless of the ruling.

http://twitter.com/LarrySabato/statu...34163378507776

This shows how exaggerated right-wing bloggers are when the try to make themselves feel better by claiming this ruling will knock Obama out of office. Erick Erickson is just one example. Krauthammer of the WAPO was making the same claim recently.

[boutons_deux]

Bob Parry trashes broccoli-scare-monger shill Scalia and other dissenting JINOs.

How Scalia Distorts the Framers

In their angry dissent on June 28, the four wrote: “If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor proLuck_The_Fakers_fane.’” They footnoted Hamilton’s Federalist Paper No. 33.

A portrait of Alexander Hamilton by John Trumbull, 1792.

That sounds pretty authoritative, doesn’t it? Here’s Hamilton, one of the strongest advocates for the Cons ution, offering a prescient warning about “Obamacare” from the distant past of 1788.

Except that Scalia and his cohorts are misleading you. In Federalist Paper No. 33, Hamilton was not writing about the Commerce Clause. He was referring to clauses in the Cons ution that grant Congress the power to make laws that are “necessary and proper” for executing its powers and that establish federal law as “the supreme law of the land.”

Hamilton also wasn’t condemning those powers, as Scalia and his friends would have you believe. Hamilton was defending the two clauses by poking fun at the Anti-Federalist alarmists who had stirred up opposition to the Cons ution with warnings about how it would trample America’s liberties.

In the cited section of No. 33, Hamilton is saying the two clauses had been unfairly targeted by “virulent invective and petulant declamation.”

It is in that context that Hamilton complains that the two clauses “have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane.”

In other words, last week’s dissent from Scalia and the three other right-wingers does not only apply Hamilton’s comments to the wrong section of the Cons ution but reverses their meaning. Hamilton was mocking those who were claiming that these clauses would be “the hideous monster.”

However, what Madison’s comments about the Commerce Clause actually demonstrated was a core reality about the Framers – that, by and large, they were practical men seeking to build a strong and unified nation. They also viewed the Cons ution as a flexible do ent designed to meet America’s ever-changing needs, not simply the challenges of the late 18th Century.

As Hamilton wrote in Federalist Paper No. 34, “we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Cons utions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs.

“Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity.”

Indeed, the Commerce Clause was a principal power that Madison crafted to deal with commercial challenges both current to his time and future ones that could not be anticipated by his contemporaries.

There also was a reason why the Framers made the power to regulate interstate commerce unlimited. They wanted to invest in the elected representatives the United States the ability to solve future problems.

In Madison’s day, the nation’s challenges included the need for canals and roads that would move goods to market and enable settlers to travel westward into lands that European powers also coveted. Always a principal concern was how European compe ion could undermine the hard-won independence of the nation.

Though the Framers could not have envisioned the commercial challenges of the modern world, American businesses remain under intense foreign compe ion today, in part, because of an inefficient health-care system that imposes on U.S. businesses the cost of health insurance that drives up the price of American goods.

Under the current system, not only do many American businesses pay for their employees’ health care – while most other developed nations pay medical bills through general taxation – but U.S. companies indirectly pick up the cost of the uninsured who get emergency care and don’t pay.

So, a law that makes American businesses more compe ive by addressing this “free-rider” problem – and by assuring a healthier work force – would seem to be right down the middle of the Framers’ intent in drafting the Commerce Clause.

No Practicality

In contrasting Justice Ginsburg’s opinion on the Affordable Care Act with Scalia’s dissent, one of the most striking differences is how the Framers are understood: Ginsburg sees them as pragmatic problem-solvers, while Scalia envisions them as rigid ideologues placing individual freedom above practical goals.

The core of the Scalia-written dissent is that the Cons ution is NOT about solving problems, but rather following the most crimped interpretation of the words. Indeed, he ridicules Ginsburg for viewing the founding do ent as implicitly intended to give the elected branches of government the flexibility to address national challenges.

Yet, there was little question from either side that virtually every American participates in the commerce of health care – from birth to death – and that the health-insurance mandate in the Affordable Care Act was intended by Congress to regulate what is clearly a national market.

In the dissent, the four right-wing justices acknowledged that “Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercisLuck_The_Fakers_ing the powers accorded to it under the Cons ution.

“The question in this case, however, is whether the complex structures and provisions of the … Affordable Care Act … go beyond those powers. We conclude that they do.”

Scalia noted that Ginsburg “treats the Cons ution as though it is an enumeration of those problems that the Federal Government can adLuck_The_Fakers_dress — among which, it finds, is ‘the Nation’s course in the economic and social welfare realm,’ … and more specifically ‘the problem of the uninsured.’

“The Cons ution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Cons ution confers, among which is the power to regulate commerce.

“None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national-Luck_The_Fakers_problem power.”

The right-wing justices insisted that the power to “regulate” commerce couldn’t possibly cover something like a mandate to buy health insurance.

Scalia and Roberts also adopted a very narrow concept of participation in the health-care industry. Though it’s undeniable that virtually all Americans – from birth to death – receive medical care of various types and at different times, the Court’s five right-wing justices treated the gaps between those events as meaning people are no longer in the health market.

Roberts wrote: “An individual who bought a car two years ago and may buy another in the future is not ‘active in the car market’ in any pertinent sense. The phrase ‘active in the market’ cannot obscure the fact that most of those regulated by the individual mandate are not currently engaged in any commercial activity involving health care, and that fact is fatal to the Government’s effort to ‘regulate the uninsured as a class.’”

But, as Ginsburg noted in her opinion, this comparison is off-point, because a person can plan for the purchase of a car but often is thrust into the medical industry by an accident or an unexpected illness.

Over and over again, the five right-wing justices behaved as if they started out with a determination to reject a cons utional justification under the Commerce Clause and then dreamt up legal wording to surround their preconceived conclusion.

In doing so, they treated the Cons ution as some finicky legal do ent rather than what the Framers had intended, a vibrant structure for solving national problems.

http://consortiumnews.com/2012/07/04...s-the-framers/

[scott]

Federal Judge Richard Posner: The GOP Has Made Me Less Conservative

Judge Richard Posner, a conservative on the 7th U.S. Circuit Court of Appeals in Chicago, has long been one of the nation's most respected and admired legal thinkers on the right. But in an interview with NPR, he expressed exasperation at the modern Republican Party, and confessed that he has become "less conservative" as a result.

Posner expressed admiration for President Ronald Reagan and the economist Milton Friedman, two pillars of conservatism. But over the past 10 years, Posner said, "there's been a real deterioration in conservative thinking. And that has to lead people to re-examine and modify their thinking."

"I've become less conservative since the Republican Party started becoming goofy," he said.

Posner, who was appointed to the appeals court by Reagan, speculated that the leaks about the deliberations over the national health care law — which are apparently designed to discredit Chief Justice John Roberts' opinion upholding the law — would backfire. "I think these right-wingers who are blasting Roberts are making a very serious mistake," he said.

"Because if you put [yourself] in his position ... what's he supposed to think? That he finds his allies to be a bunch of crackpots? Does that help the conservative movement? I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, 'What am I doing with this crowd of lunatics?' Right? Maybe you have to re-examine your position."

In addition to his work as an appeals court judge, Posner is the author of more than three dozen books on subjects ranging from law and economics to aging and literature.

http://www.npr.org/blogs/itsallpolit...1&f=1014&sc=tw

[boutons_deux]

Posner sounds like a serious person. I had a su ion there were still some adult, serious conservatives somewhere. He makes it a crowd of one.

[redzero]

Funny coming from somebody whose posts are full of lame nicknames and insults.